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VA Disability Claims: 5 Game-Changing Precedential Decisions You Need to Know
Tbird posted a record in VA Claims and Benefits Information,
These decisions have made a big impact on how VA disability claims are handled, giving veterans more chances to get benefits and clearing up important issues.
Service Connection
Frost v. Shulkin (2017)
This case established that for secondary service connection claims, the primary service-connected disability does not need to be service-connected or diagnosed at the time the secondary condition is incurred 1. This allows veterans to potentially receive secondary service connection for conditions that developed before their primary condition was officially service-connected.
Saunders v. Wilkie (2018)
The Federal Circuit ruled that pain alone, without an accompanying diagnosed condition, can constitute a disability for VA compensation purposes if it results in functional impairment 1. This overturned previous precedent that required an underlying pathology for pain to be considered a disability.
Effective Dates
Martinez v. McDonough (2023)
This case dealt with the denial of an earlier effective date for a total disability rating based on individual unemployability (TDIU) 2. It addressed issues around the validity of appeal withdrawals and the consideration of cognitive impairment in such decisions.
Rating Issues
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Tbird, -
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Are all military medical records on file at the VA?
RichardZ posted a topic in How to's on filing a Claim,
I met with a VSO today at my VA Hospital who was very knowledgeable and very helpful. We decided I should submit a few new claims which we did. He told me that he didn't need copies of my military records that showed my sick call notations related to any of the claims. He said that the VA now has entire military medical record on file and would find the record(s) in their own file. It seemed odd to me as my service dates back to 1981 and spans 34 years through my retirement in 2015. It sure seemed to make more sense for me to give him copies of my military medical record pages that document the injuries as I'd already had them with me. He didn't want my copies. Anyone have any information on this. Much thanks in advance.-
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RichardZ, -
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Caluza Triangle defines what is necessary for service connection
Tbird posted a record in VA Claims and Benefits Information,
Caluza Triangle – Caluza vs Brown defined what is necessary for service connection. See COVA– CALUZA V. BROWN–TOTAL RECALL
This has to be MEDICALLY Documented in your records:
Current Diagnosis. (No diagnosis, no Service Connection.)
In-Service Event or Aggravation.
Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service”-
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Tbird, -
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Post in ICD Codes and SCT CODES?WHAT THEY MEAN?
Timothy cawthorn posted an answer to a question,
Do the sct codes help or hurt my disability ratingPicked By
yellowrose, -
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Post in Chevron Deference overruled by Supreme Court
broncovet posted a post in a topic,
VA has gotten away with (mis) interpreting their ambigious, , vague regulations, then enforcing them willy nilly never in Veterans favor.
They justify all this to congress by calling themselves a "pro claimant Veteran friendly organization" who grants the benefit of the doubt to Veterans.
This is not true,
Proof:
About 80-90 percent of Veterans are initially denied by VA, pushing us into a massive backlog of appeals, or worse, sending impoverished Veterans "to the homeless streets" because when they cant work, they can not keep their home. I was one of those Veterans who they denied for a bogus reason: "Its been too long since military service". This is bogus because its not one of the criteria for service connection, but simply made up by VA. And, I was a homeless Vet, albeit a short time, mostly due to the kindness of strangers and friends.
Hadit would not be necessary if, indeed, VA gave Veterans the benefit of the doubt, and processed our claims efficiently and paid us promptly. The VA is broken.
A huge percentage (nearly 100 percent) of Veterans who do get 100 percent, do so only after lengthy appeals. I have answered questions for thousands of Veterans, and can only name ONE person who got their benefits correct on the first Regional Office decision. All of the rest of us pretty much had lengthy frustrating appeals, mostly having to appeal multiple multiple times like I did.
I wish I know how VA gets away with lying to congress about how "VA is a claimant friendly system, where the Veteran is given the benefit of the doubt". Then how come so many Veterans are homeless, and how come 22 Veterans take their life each day? Va likes to blame the Veterans, not their system.Picked By
Lemuel, -
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Question
foreveryoung
I was reviewing the below Decision for CUE and would like to know if anyone else has come across the use of 38 CFR 3.1 (m) and how it may apply to preexisting conditions?
I believe this may apply to my claim for CUE. I can read this decision, but it is not sinking in for me to fully understand. Any help would be great.
THANKS
Citation Nr: 0519395
Decision Date: 07/18/05 Archive Date: 07/22/05
DOCKET NO. 03-00 527 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Whether an April 1970 rating decision was clearly and
unmistakably erroneous (CUE) in failing to award service
connection for epiphysis dysplasia tarda and a back condition
to include spondylolisthesis.
REPRESENTATION
Veteran represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
D. Hachey, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1968 to
September 1969.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office in Detroit, Michigan
(the RO).
This matter has been certified to the Board for review of a
December 2001 rating decision, which found that the veteran
had not submitted new and material evidence to warrant the
reopening of a claim of service connection for epiphysis
dysplasia tarda and a back condition to include
spondylolisthesis. However, applicable law provides that
certification is for administrative purposes and does not
serve to either confer or deprive the Board of jurisdiction
of an issue. 38 C.F.R. § 19.35.
Upon review of the claims folder, the Board has
recharacterized the issue before it as reflected on the title
page of this decision. The record indicates that in
September 1969, the RO received the veteran's claim of
service connection for epiphysis dysplasia tarda;
osteoarthritis of the hips, knees, and ankles; and a low back
disability to include spondylolisthesis of the lumbosacral
spine. An April 1970 rating decision denied the claims,
finding that these disabilities existed prior to service and
were not aggravated therein. The veteran did not appeal this
decision to the Board.
In June 1990, the veteran requested that his claims be
reopened. In a rating decision issued later that month, the
RO declined to reopen the claims on the basis that new and
material evidence had not been submitted. The veteran
subsequently appealed his claims to the Board, which, in a
September 1992 decision declined to reopen the claims on
grounds similar to those outlined by the RO.
Following the Board's decision, the veteran appealed to the
United States Court of Appeals for Veterans Claims (the
Court), which remanded the case in October 1993 based on a
Joint Motion for Remand which argued that new and material
evidence had been received thus warranting adjudication of
the claims on the merits.
Following the Court's remand, the veteran submitted a new
claim asserting that the April 1970 rating decision that
denied service connection for osteoarthritis of the hips,
knees, and ankles; epiphysis dysplasia tarda; and a low back
disability to include spondylolisthesis of the lumbosacral
spine was the product of CUE. Specifically, the veteran
argued that because a July 1969 Army Medical Board report
determined that these conditions were aggravated in the line
of duty, such determination was binding on VA by virtue of
38 C.F.R. § 3.1(m). The RO denied the veteran's CUE claim in
an August 1995 decision, and he duly perfected an appeal of
this decision.
In a December 1997 decision, the Board awarded service
connection for "osteoarthritis of the hips, knees, and
ankles," specifically concluding that under the provisions
of 38 C.F.R. § 3.1(m), VA was bound by the Medical Board's
determination that these disabilities were aggravated in the
line of duty. See 38 C.F.R. § 3.1(m) ["In line of duty"
means an injury or disease incurred or aggravated during a
period of active military, naval, or air service unless such
injury or disease was the result of the veteran's own willful
misconduct or, for claims filed after October 31, 1990, was a
result of his or her abuse of alcohol or drugs. A service
department finding that injury, disease or death occurred in
line of duty will be binding on the Department of Veterans
Affairs unless it is patently inconsistent with the
requirements of laws administered by the Department of
Veterans Affairs.] Thus, the Board concluded that the RO's
failure to properly apply 38 C.F.R. § 3.1(m) in the April
1970 rating decision amounted to CUE. Given the favorable
outcome of the CUE claim, the Board determined that the
direct service connection claim for osteoarthritis of the
hips, knees, and ankles was essentially moot.
The December 1997 Board decision did not, however, address
the issue of CUE in the April 1970 rating decision as it
pertains to the issues of service connection for epiphysis
dysplasia tarda and a back disability to include
spondylolisthesis. These issues were clearly on appeal at
the time of the December 1997 Board decision, yet were not
adjudicated by that decision. See e.g. September 1995 notice
of disagreement [referring to a "back" disability].
Because these issues were not addressed by the Board's
December 1997 decision, they are still on appeal and will be
adjudicated by the Board below.
Given the favorable decision with regard to the veteran's CUE
claim, the issue of whether new and material evidence has
been submitted to reopen the veteran's service connection
claim for familial multiple epiphysial dysplasia tarda with
spondylolisthesis of the lumbar spine has been essentially
rendered moot.
The veteran presented testimony before the undersigned
Veterans Law Judge (VLJ) with regard to the issue as
certified on appeal via a videoconference hearing in March
2005. A transcript of this hearing has been associated with
the veteran's VA claims folder. While the veteran also
presented testimony with regard to his CUE claim before a
different VLJ in June 1997, given the grant of the CUE claim
in this decision, the veteran would not be prejudiced by the
case being adjudicated by the undersigned.
FINDINGS OF FACT
1. A July 1969 Army Medical Board report found that the
veteran's epiphysis dysplasia tarda and back disability (to
include spondylolisthesis) preexisted service and were not
aggravated therein.
2. A December 1997 Board decision found that the
determinations made by the Army Medical Board were binding on
VA by virtue of 38 C.F.R. § 3.1(m).
CONCLUSION OF LAW
The April 1970 rating decision was clearly and unmistakably
erroneous in failing to award the veteran service connection
for epiphysis dysplasia tarda and a back disorder to include
spondylolisthesis. 38 U.S.C.A. § 5109A (West 2002);
38 C.F.R. §§ 3.1 (m), 3.105 (2004); see also Chisem v. Gober,
10 Vet. App. 526 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Preliminary Matter: VA's Duty to Notify and Assist the
Claimant
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). The VCAA is applicable to
all claims filed on or after the date of enactment, November
9, 2000, or filed before the date of enactment and not yet
final as of that date. The VCAA is accordingly generally
applicable to this case. See Holliday v. Principi, 14 Vet.
App. 280 (2000) [the Board must make a determination as to
the applicability of the various provisions of the VCAA to a
particular claim].
The thrust of the veteran's presentation is that the RO
committed CUE in connection with the April 1970 decision,
which denied service connection for epiphysis dysplasia tarda
and a back disability to include spondylolisthesis. Although
the VCAA is generally applicable to all claims filed on or
after the date of its enactment, it is not applicable to CUE
claims. In Livesay v. Principi, 15 Vet. App. 165 (Aug. 30,
2001) the Court held that "there is nothing in the text or
the legislative history of VCAA to indicate that VA's duties
to assist and notify are now, for the first time, applicable
to CUE motions." In concluding that the VCAA is not
applicable to allegations of CUE, the Court's opinion
explained that even though the VCAA is a reason to remand
"many, many claims, . . . it is not an excuse to remand all
claims."
In essence, the Court in Livesay continued to hold that the
VCAA is potentially applicable to all pending claims, as it
had held in Holliday. However, the Court further indicated
that CUE claims are not conventional appeals, but rather are
requests for revision of previous decisions. A claim of CUE
is not by itself a claim for benefits. Thus, CUE is
fundamentally different from any other kind of action in the
VA adjudicative process. A litigant alleging CUE is not
pursuing a claim for benefits, but rather is collaterally
attacking a final decision. Thus, a "claimant", as defined
by 38 U.S.C.A. § 5100, cannot encompass a person seeking a
revision of a final decision based upon CUE. As a
consequence, VA's duties to notify and assist contained in
the VCAA are not applicable to CUE motions. See also 38
C.F.R. § 20.1411© and (d) (2004).
The Board observes in this connection that in general a CUE
claim does not involve the submission of additional evidence
apart from what already resides in the claims folder. In
this case, as discussed below, the outcome rests on the
interpretation of evidence already contained in the claims
folder. Accordingly, based on the Court's precedential
decision in Livesay, the Board concludes that the veteran's
CUE claim is not subject to the provisions of the VCAA.
The Merits of the Appeal
As noted, the veteran has previously asserted that there was
CUE in the April 1970 rating decision which denied service
connection for epiphysis dysplasia tarda and a back
disability to include spondylolisthesis, and he has not
withdrawn this contention in the present appeal. He
essentially contends that the April 1970 decision contained
CUE by failing to follow the Army Medical Board's finding
that his preexisting epiphysis dysplasia tarda and back
disability were service aggravated. See 38 C.F.R. § 3.1(m).
The veteran did not appeal that decision, and it is thus
considered final, although it may be reversed if found to be
based upon clear and unmistakable error.
Legal authority provides that, where clear and unmistakable
error is found in a prior decision, the prior decision will
be reversed or revised, and, for the purposes of authorizing
benefits, the rating or other adjudicative decision which
constitutes a reversal or revision of the prior decision on
the grounds of clear and unmistakable error has the same
effect as if the decision had been made on the date of the
prior decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §
3.105(a) (2004).
Under law, clear and unmistakable is determined by three
criteria: (1) either the correct facts, as they were known at
the time, were not before the adjudicator (i.e., there must
be more than a simple disagreement as to how the facts were
weighed or evaluated) or the statutory or regulatory
provisions extant at the time were incorrectly applied; (2)
the error must be undebatable and of the sort which, had it
not been made, would have manifestly changed the outcome at
the time it was made; and (3) a determination that there was
clear and unmistakable error must be based on the record and
law that existed at the time of the prior adjudication in
question. Russell v. Principi, 3 Vet. App. 310 (1992).
It has been held that clear and unmistakable error is a very
specific and rare kind of 'error.' It is the kind of error,
of fact or of law, that when called to the attention of later
reviewers compels the conclusion, to which reasonable minds
could not differ, that the result would have been manifestly
different but for the error. Fugo v. Brown, 6 Vet. App. 40,
43-44 (1993).
The record indicates that a July 1969 Army Medical Board
report determined that the veteran's epiphysis dysplasia
tarda and spondylolisthesis preexisted service and were
aggravated therein. (Italics added). The Board subsequently
determined in its December 1997 decision (adjudicating the
claim of CUE in the April 1970 decision as it pertains to
osteoarthritis of the hips, knees, and ankles) that service
department line of duty determinations, such as those made in
the July 1969 Army Medical Board report, were binding upon VA
under the provisions of 38 C.F.R. § 3.1(m).
This determination by the Board is now the "law of the
case" as it pertains to the remaining aspects of the
veteran's CUE claim (regarding epiphysis dysplasia tarda and
spondylolisthesis). See Chisem v. Gober, 10 Vet. App. 526,
527-8 (1997) [under the "law of the case" doctrine,
appellate courts generally will not review or reconsider
issues that have already been decided in a previous appeal of
the same case, and therefore, the Board is not free to do
anything contrary to the prior Board decision with respect to
the same claim].
Accordingly, under the "law of the case" doctrine, the
Board finds that the Army Medical Board's determination that
the veteran's epiphysis dysplasia tarda and spondylolisthesis
preexisted service and were aggravated therein is binding on
VA and the Board under the provisions of 38 C.F.R. § 3.1(m).
Therefore, by failing to properly apply this regulation, the
RO committed clear and unmistakable error in the April 1970
rating decision. Service connection is therefore warranted
for epiphysis dysplasia tarda and a back disability to
include spondylolisthesis.
ORDER
Clear and unmistakable error having been found in the April
1970 rating decision denying service connection for epiphysis
dysplasia tarda and a back disability to include
spondylolisthesis, the appeal is granted.
____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
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